Endangered Species Committee Report

Administrative Developments

A. Recission of Amendment to Critical Habitat Regulations to Address Definition of Habitat

The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) issued a final rule rescinding the definition of “habitat” that was promulgated by the prior administration in December of 2020. The definition of habitat stated that “[f]or the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.” FWS and NMFS faulted the definition because it eliminated from possible designation as critical habitat any area that does not ‘‘currently or periodically’’ contain a necessary ‘‘’resource or condition’ even though it could do so as a result of natural transition following a disturbance…, in response to climate change, or after reasonable restoration.” FWS and NMFS stated:

we find that a better reading of the Act, consistent with the statutory mandate to apply the best available science, is that an area should not be precluded from qualifying as habitat because some reasonable restoration or alteration, whether through reasonable human intervention or natural processes, is necessary for it to support a species’ recovery.

FWS and NMFS concluded that “the definition is unhelpful, unnecessary, and improperly and excessively constrain[ed] the Services’ authority under the statute . . . .”

B. Rescission of Section 4(b)(2) Regulations Regarding Exclusion of Areas from Critical Habitat Designation

FWS issued a final rule rescinding amendments to regulations promulgated by the prior administration in December 2020 regarding factors to consider in excluding certain areas from critical habitat designations under section 4(b)(2) of the ESA. The 2020 rule superseded a 2016 policy that was jointly issued by both FWS and NMFS. Because NMFS did not participate in the 2020 rulemaking, the 2016 policy was superseded for FWS but not for NMFS.

FWS stated that it was rescinding the rule because it limited the FWS’s role as the expert agency by “potentially giv[ing] undue weight to outside parties in guiding the Secretary’s statutory authority,” and it decreased FWS’s ability to further the conservation of endangered and threatened species through imposition of a “rigid ruleset” as to “when and how the Secretary will exercise the discretion to exclude areas from critical habitat designations.” In reverting to the 2016 Policy currently in place for NMFS, FWS stated that it had “not identified a science- or mission-based reason for separate regulations for exclusions from critical habitat” that would outweigh the risk of confusion.

Judicial Developments

A. Section 4: Listings, Critical Habitat Designation, and Recovery Plans

1. Listings and Delistings

In Buffalo Field Campaign v. Williams, environmental plaintiffs challenged FWS’s 2019 decision declining to initiate a status review of the distinct population segment (DPS) of Yellowstone Bison. Plaintiffs argued that the 2019 Negative 90-Day Finding violated section 4 of the ESA by applying an improper legal standard. The court found that:

[b]oth the ESA and the implementing regulations require the [FWS] to make an affirmative 90-day finding if the scientific information presented in the petition indicates that the proposed action ‘may be warranted.’. . . The structure of the ESA further bolsters the conclusion that the evidentiary standard does not ask whether listing is warranted, but only whether substantial or credible scientific information supports that possibility.

In determining whether FWS impermissibly resolved a substantial scientific dispute when it rendered its Negative 90-Day Finding, the court found that FWS had, without explanation, favored one scientific study over another when there was an ongoing scientific debate. If two scientific pieces of evidence conflict, then FWS must explain why the not chosen scientific evidence was not credible or irrelevant but had failed to do so. As a result, the court concluded that FWS’s 2019 90-Day Finding failed to follow the governing evidentiary standard. The court granted plaintiffs’ motion for summary judgment, vacated the FWS’s 2019 Negative 90-Day Finding, and remanded the matter to the FWS for further proceedings.

In Natural Resources Defense Council, Inc. v. Coit, environmental plaintiffs brought an action against NMFS alleging that NMFS had failed to list the alewife and blueback populations of river herring as threatened in violation of the ESA and Administrative Procedure Act (APA). Plaintiffs argued that the listing decision contained multiple errors of law, including a discounting of the threats to river herring posed by climate change and a reliance on an unsupported theory that river herring will rapidly recolonize rivers if the extant populations in those rivers have been eliminated. The court mostly granted NMFS’ motion for summary judgment and found that NMFS’s determination that a threatened or endangered listing was not warranted was “thorough” and “largely unobjectionable.” The theory regarding the recolonization of extirpated areas was found to be grounded in scientific evidence. The court denied defendants’ motion for summary judgment in two limited respects; specifically for the blueback herring population in southern New England, NMFS failed to adequately explain its finding that this group was not a distinct population segment and why it did not assess that population under the agency’s “significant portion of its range” policy. Accordingly, the court left the listing decision in place and remanded the matter to NMFS for further explanation on those two points.

In Desert Survivors v. United States Department of the Interior, environmental plaintiffs challenged the decision by FWS to withdraw a proposed listing rule for the bi-state sage grouse. The U.S. District Court for Northern California found that the 2020 decision to withdraw the proposal did not address FWS’s earlier determinations that declining populations in the smaller, isolated population management units (PMUs) “are of concern” and that isolation “presents challenges to the entire Bi-State DPS.” The court stated that FWS failed to consider an important aspect of the problem when it “did not grapple with the interplay between the high probabilities of 10-year extirpation of individual PMUs and the isolation of PMUs that persist.” The court also found that FWS ignored the best available data and made an unsupported determination that the bi-state sage grouse’s effective population size is above the minimum threshold for viability. The court held that the 2020 withdrawal decision was arbitrary and capricious and issued an order vacating it and reinstating the 2013 listing proposal.

2. Critical Habitat Designations

In Northern New Mexico Stockman’s Association v. United States Fish & Wildlife Service, cattle ranching plaintiffs appealed to the Tenth Circuit the U.S. District Court for New Mexico’s dismissal of its challenge to the FWS’s critical habitat determination for the New Mexico meadow jumping mouse. Appellants argued that (1) the methodology used by FWS for analyzing the economic impacts of the critical habitat designation violated the ESA and Tenth Circuit precedent; (2) the impact of designating critical habitat on ranchers’ water rights on federal lands was not evaluated; and (3) the reasoning provided by FWS for its decision to not exclude certain areas from the critical habitat designation was inadequate.

In affirming the district court’s judgment, the Tenth Circuit found that, while not entitled to Chevron deference, the FWS’s applied baseline method for calculating economic impacts, which uses a “but for” causation requirement to attribute economic impacts to the designation of critical habitat, is reasonable. The Tenth Circuit also found plaintiffs’ allegations of potential water taking to be too speculative such that it was reasonable for the FWS not to include such costs in its economic analysis. Lastly, the court found that the FWS did not abuse its discretion when it decided, after weighing the benefits of exclusion against the benefits of inclusion, to not exclude certain units of land from the critical habitat designation.

B. Section 7: Federal Agency Conservation Duty, Jeopardy Standard Consultations, and Incidental Take Statements

In Neighbors of the Mogollon Rim Inc. v. United States Forest Service, the U.S. District Court for Arizona granted summary judgment in favor of defendants, U.S. Forest Service and FWS, finding that the Forest Service’s biological assessment (BA) and the FWS’s concurrence, properly determined that the Mexican spotted owls (MSO) would not be affected by a proposed national forest grazing management plan. Plaintiffs argued that the Forest Service and the FWS acted in an arbitrary and capricious manner because the agencies “failed to explain why grazing could now not significantly affect MSOs” when, in 2008, there was a zero-grazing policy in the relevant area due to the presence of MSOs. The court held that the “2008 proposed action did not prohibit grazing in all MSO habitats,” FWS had not concluded that any grazing would adversely affect owl habitats, and several other factors affected the health of MSO habitats. The court concluded that the proposed national forest grazing management plan was properly developed and that the agencies appropriately complied with their section 7 consultation obligations.

In Appalachian Voices v. United States Department of the Interior, environmental petitioners challenged a “no jeopardy” Biological Opinion (BiOp) issued by FWS for effects to Roanoke logperch and candy darter resulting from the Mountain Valley Pipeline project. Petitioners argued that FWS had failed to adequately evaluate environmental baseline effects and cumulative effects, and that the surrogate for measuring incidental take (sediment measurements) did not set a clear standard as required by the regulations. The Fourth Circuit held that FWS had failed to adequately evaluate baseline effects and cumulative effects and that assertions by FWS that species population models used had accounted for all effects were inaccurate and a post hoc rationalization. The court further held that FWS had failed to adequately consider climate change in the BiOp, whether it belonged in the environmental baseline, cumulative effects, or both. The court found petitioners’ claim regarding the incidental take statement (ITS) to be without merit because the take surrogate FWS selected provided a clear mechanism for detecting exceedance. The Fourth Circuit vacated the BiOp and ITS and remanded to FWS for further proceedings.

In Board of County Commissioners of County of San Miguel v. U.S. Bureau of Land Management, the U.S. District Court for Colorado held that the U.S. Bureau of Land Management (BLM) violated the ESA by failing to consult with the FWS regarding whether the issuance of oil and gas leases would affect the Gunnison sage-grouse and its critical habitat. The court stated that although BLM had previously consulted with the FWS on a resource management plan located in the same vicinity as the oil and gas leases, “BLM had an independent duty to reinitiate consultation” with FWS, irrespective of any request from FWS, if new information revealed that listed endangered species would be impacted in a manner or to an extent not previously considered. Since BLM had new information at the leasing stage regarding the potential impact on the Gunnison sage-grouse or its critical habitat, this revived BLM’s duty to consult under the ESA. The court held that BLM’s failure to consult violated section 7 of the ESA.

In Friends of the Clearwater v. Petrick, the U.S. District Court for Idaho held that the Forest Service’s decision to approve a project of approximately 1,700 acres of timber harvest and prescribed burning violated the ESA. The court granted environmental plaintiff’s motion for summary judgement, finding that the Forest Service violated the ESA by failing to obtain an adequate “list of endangered or threatened species that may be present in the project area” and by failing to prepare a BA that included the possible impact on grizzly bears. “To meet the ESA’s standard, the species list must be ‘based on the best scientific and commercial data available’ and properly apply the ‘may be present’ standard.” The court concluded that the “may be present” standard was not met because the standard does not require actual occurrence or occupancy, it requires “only the possibility that a listed species is present.” Plaintiffs were able to show the possibility of grizzly bear presence through four pieces of evidence that demonstrated their presence in the project area. Although the agencies argued that they did not need to prepare a BA for the grizzly bear because the Forest Service had determined that “the action would have no effect on the grizzly bear,” the court disagreed and found that “the federal agencies’ argument puts the cart before the horse —in a way not consistent with the statutory language.” The court concluded that “ >t]he Forest Service must adhere to the requirements of [first] requesting a species list and [then] preparing a BA for [the] species that may be present as part of the process of determining whether the action may affect a listed species.”

In Klamath Siskiyou Wildlands Ctr. v. United States Fish & Wildlife Service, plaintiffs alleged the FWS violated the ESA and APA when it issued a 2020 BiOp assessing the effects of two BLM forest management projects on the threatened northern spotted owl and its designated critical habitat. Plaintiffs claimed that FWS failed to consider multiple aspects of spotted owl conservation in reaching its “no jeopardy” and “no adverse modification” determinations. The court ultimately found that the FWS appropriately considered all relevant effects and reached reasonable conclusions using the best data available. The court also held that plaintiffs failed to demonstrate that conservation measures were not sufficiently enforceable or reasonably certain to occur because the BiOp provided that the project design criteria must be implemented to the fullest extent possible, and if not done so, reinitiation of consultation is required. Further, the court found FWS’s consideration of occupancy of habitat by spotted owls was reasonably based on guidance previously prepared by BLM and FWS and denied plaintiffs’ claims for preliminary injunctive relief.

In Pacific Coast Federation of Fishermen’s Associations v. Raimondo, plaintiffs challenged a pair of “no jeopardy” BiOps issued by NMFS and FWS in 2019 to “ address the impact on various ESA-listed species of implementing an updated plan issued by the U.S. Bureau of Reclamation (Reclamation) and the California Department of Water Resources for the long-term operation of the Central Valley Project and the State Water Project” in California. “On September 30, 2021, federal defendants formally reinitiated consultation on the challenged biological opinions.” Based on the reinitiation of consultation, federal defendants moved for voluntary remand without vacatur and requested that the court impose a stipulated package of measures as an Interim Operating Plan (IOP). The U.S. District Court for Eastern California evaluated the IOP as a consent decree. It noted that the IOP will be temporary and does not impose substantive constraints on the agency's reconsideration of the 2019 BiOps. As such, approval of the IOP in the form of a consent decree would not require the agencies to undertake additional ESA or NEPA review. The court also noted that the ITSs issued with the 2019 BiOps would not need to be revised to conform to the IOP because once the court orders the injunctive relief, Reclamation would no longer have “discretionary control over the aspects of the project for which the court has ordered operations.” “‘[A] federal agency that is legally required to take an action … cannot be the proximate cause of [] section 9 take by undertaking that non-discretionary action.’” The court concluded that “[as] long as Reclamation operates the CVP consistent with the terms of the IOP, the agency is no longer required to rely on the ITS with respect to those portions of operations.” The court granted the federal defendants’ motion for a remand of the 2019 BiOps without vacatur and the motion for an order requiring implementation of the IOP as an interim remedy.

In Maine Lobstermen’s Association, Inc. v. National Marine Fisheries Service, plaintiffs challenged a BiOp issued by NMFS, arguing that it made scientific errors that caused it to overestimate the lobster fishery’s effects on the North Atlantic right whale (NARW). The U.S. District Court for the District of Columbia granted summary judgment in favor of NMFS, finding that NMFS’s judgment calls in favor of the NARW did not violate the requirement of using the best data available and that NMFS adequately justified allocations of NARW entanglements with fishing gear. The court determined that NMFS suitably considered the data available and reasonably explained its scientific conclusions by supplementing the data in cases where ambiguous or incomplete information required the agency to side with a judgement that would lead to conclusions of higher, rather than lower, risk to endangered or threatened species. The court reasoned that NMFS “did not use a substantive presumption to displace scientific judgement.” Instead, NMFS purported only to resolve uncertainty when the best science left it a range of possible options and thus, the agency’s approach was rational and passed muster under the arbitrary-and-capricious standards of review. As to the entanglement argument, the court determined that NMFS appropriately concluded that NARW were disproportionately impacted due to fishing gear. The court noted that although the plaintiffs objected to NMFS’s approach in reaching this conclusion, plaintiffs were “unable to identify specific reliable data that the agency overlooked or other material gaps in its reasoning.” The court held that the agency’s conclusions were not arbitrary or capricious.

In Center for Biological Diversity v. NOAA Fisheries, environmental plaintiffs challenged the NMFS’ issuance of a BiOp on the Coast Guard action of “codifying shipping lanes that vessels use to approach ports” in California. “Plaintiffs argue[d] that NMFS violated the ESA by failing to properly evaluate the impacts of shipping lane designations on endangered whales and sea turtles” and by failing to provide an ITS with the BiOp. The U.S. District Court for Northern California disagreed with NMFS’ assertion that incidental take was not reasonably certain to occur and held that NMFS’ decision to not issue an ITS was arbitrary and capricious. The court stated, “the BiOp explicitly declines to provide an ITS, because it assumes that, compared to the hypothetical no-lane scenario, the [designated lanes] will result in fewer ship strikes. . . . To simply state that there is no taking because some hypothetical scenario would kill more protected species is suspect.” The court granted plaintiffs’ motion for summary judgment on the grounds that an ITS should have been issued and vacated the BiOp.

In Center for Food Safety v. Regan, petitioners challenged EPA’s failure to consult under section 7 when it amended the registration for the pesticide sulfoxaflor. EPA defended its failure to consult based on a lack of resources. The Ninth Circuit stated, “EPA cannot flout the will of Congress-and of the people—just because it thinks it is too busy or understaffed.” The court held that EPA violated the ESA when it registered sulfoxaflor without first determining whether it may affect endangered species, and if so, consulting with the wildlife agencies. The court “reluctantly” remanded without vacatur for EPA to complete section 7 consultation within 180 days, stating, “despite our serious concern that EPA has continued to flout the ESA, we ultimately conclude that EPA could maintain the same registration decision once it makes an effects determination and engages in any required consultation.”

In Environmental Defense Center v. Bureau of Ocean Energy Management, the Ninth Circuit affirmed the district court decision finding that the Bureau of Ocean Energy Management (Bureau) had failed to consult under section 7 of the ESA prior to issuing an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) for “well- stimulation treatments,” which are techniques to extend the life of producing wells. The Bureau argued that issuance of the EA and FONSI was not an agency action requiring section 7 consultation because it did not approve well stimulation treatments for specific wells offshore California. Applying a two-step test to “agency action,” the Ninth Circuit agreed with the district court that the Bureau had taken an affirmative discretionary agency action that may affect federally listed species. The Ninth Circuit stated that where there is a mix of federal and private action, there is agency action for ESA purposes if the agency made an “affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed.” The Ninth Circuit held that when the Bureau issued the EA and FONSI concluding that the well stimulation treatments would have no significant impact, it had “affirmatively decided” to allow the treatments to proceed, even though private companies would still need to obtain federal permits before conducting the treatments.

In Center for Biological Diversity v. Haaland, environmental groups, states, and cities challenged amendments to ESA regulations promulgated in 2019 (2019 Rules), alleging the rules violated the ESA, NEPA, and the APA. FWS and NMFS indicated they intended to rescind and revise some of the challenged 2019 Rules and requested voluntary remand without vacatur. The U.S. District Court for Northern California decided to remand and vacate the 2019 Rules without conducting a merits analysis. On appeal to the Ninth Circuit in In re Wash. Cattlemen’s Ass’n, the appellate court stayed the order based on recent Supreme Court precedent, stating “[i]t is apparent that the district court in its July 5, 2022 Order clearly erred in vacating the 2019 Rules without ruling on their legal validity.” The district court subsequently remanded the 2019 Rules to FWS and NMFS without vacatur.

C. Section 9: Prohibited Acts

In Cascadia Wildlands v. Scott Timber Co., the Ninth Circuit remanded the case to the District Court for Oregon for a factual determination regarding whether it was likely that marbled murrelets inhabited the area subject to a logging operation and would be harmed by the project. The district court determined that marbled murrelets occupied the area and that the 49-acre proposed timber harvest would “result in harm by significant impairing, through the destruction and degradation of occupied murrelet habitat, their essential behavioral patterns—causing the murrelets’ ability to nest and engage essential breeding activities to cease there for 100 years or more.” The court held that environmental plaintiffs had established that the proposed timber harvest would result in a take of marbled murrelets under Section 9 of the ESA and granted Plaintiffs’ request for a permanent injunction.

In Center for Biological Diversity v. Little, the U.S. District Court for Idaho denied the plaintiffs’ motion for a temporary restraining order and preliminary injunction. The court held that plaintiffs, conservation and animal-welfare organizations, were not likely to succeed on the merits of their claim that Idaho’s gray-wolf trapping and snaring laws were reasonably sure to continue to result in the take of threatened species and that the authorization of the laws had caused, and was reasonably to cause, the take of grizzly bears in violation of the ESA.

Plaintiffs claimed that there was a causal link between Idaho’s laws and regulations and the killing or taking of two grizzly bears, but the court noted that the plaintiff’s reliance on these two incidents did not amount to enough “evidence that either bear was snared by a lawful wolf snare or trap set in compliance with Idaho’s regulatory scheme.” The court noted that the test applicable is that “[p]laintiffs must show more than a possibility of harm to an endangered species, they must show a likelihood of harm” and in this case, the plaintiffs did not meet this requirement because they did not establish on the record that the lawful placement of wolf traps and snares was reasonably likely to result in the future take of grizzly bears.

D. Section 10: Exceptions

In Friends of Animals v. United States Fish & Wildlife Service, environmental plaintiffs appealed the decision by the U.S. District Court of Oregon to uphold a section 10 Safe Harbor permit issued by the FWS to landowners participating in an experimental program to remove barred owls from northern spotted owl habitat. Friends of Animals argued that the only benefit to be obtained from the Safe Harbor Agreement was research results and that this did not constitute a “net conservation benefit” as required by the Safe Harbor Policy and regulations. The Ninth Circuit affirmed the district court decision, holding that the term “net conservation benefit” includes the results of research that tests conservation strategies.